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National Emergency Cracks the Armour of American Democracy by Tommi Poe

When Donald Trump began his candidacy to secure the Republican nomination in 2015, he made a multitude of promises. It seems some might have to be kept in unexpected ways. While he seems to have followed through a number of them including pulling out of the Paris Climate Agreement and moving the U.S. Israel embassy to Jerusalem, he has so far failed on an integral piece of his plan to “Make America Great Again”. Trump still lacks his wall.

In the beginning, Trump told his supporters that Mexico would pay for the wall along the southwest border of the United States. Since assuming the presidency, the narrative has shifted. He has implied that Mexico will reimburse the United States for the wall after the United States first funded and constructed it. Trump does stand firm, however, on the absolute necessity of the wall. He notes that “the wall is needed from the standpoint of security. The wall is needed from the standpoint of drug.” He also stated that, “The wall will stop much of the drugs from pouring into this country and poisoning our youth. So we need the wall. It’s imperative. We may fund it through the United States. But ultimately, Mexico will pay for the wall.”

However, it seemed that a Democratic House of Representatives did not agree with these claims of necessity and thus America began 2019 in a government shutdown as Congress would not vote to fund the border wall. Now the Trump administration is trying a new tactic. On February 15th, President Trump announced that he is declaring a national emergency at the southwest U.S. border as a result of drugs, caravans, and issues in immigration. This declaration gives him the ability to allocate federal dollars to build the wall and complete one of his most essential promises to his voter base. However, as with many of President Trump’s decisions, this declaration has been met with some heavy criticism. Some of these criticisms would even imply the erosion of checks and balances, constitutional authorities, and American democracy in the eyes of many.

Some believe Trump’s decision to bypass Congress through his declaration is an example of how he is eroding institutions of power and therefore liberal democracy as defined by Zakaria (1997). Zakaria (1997) would say that a liberal democracy does not only require free and fair elections, but also must include separation of powers and protections of first amendment rights. Some may argue that the Trump administration is employing what Laudau (2013) states is “abusive constitutionalism”. Abusive constitutionalism states that the executive branch would work within existing structures to centralize power. If we look at the actions of the Trump administration through this lens established by Laudau (2013) in regard to using rules to dissolve Congressional budgeting powers, we could see cause for alarm.

The Trump administration is employing the National Emergencies Act of 1976 to circumvent Congress and fund the wall. By doing this, he is working within pre-existing structures. The administration states that funding for the $8 billion wall will come from four main sources. $1.4bn from the agreed budget, $600m from cash and assets seized from drug traffickers, $2.5bn from a defense department anti-drug trafficking fund, and $3.5bn reallocated from military construction projects. The job of Congress is to hold the purse strings of the nation. With this action, the Trump administration could dismantle this idea and set a dangerous precedent of aggrandizing power to the executive branch. This step in of centralizing executive power could be considered the first step to eroding present-day American democracy (Scheppele 2013; Landau 2013)

However, over extension of the executive branch is not the only reason that Trump’s national emergency funded border wall alarms those concerned over the erosion of democracy in the United States. Trump’s expectations of the judicial branch in a possible legal battle are also very alarming. The administration anticipated lawsuits from this declaration. As of February 19th, 16 states have already filled suits against the action. Trump seems unbothered. In his declaration speech, he said that he expects rulings in lower courts to be against him. However, he is not concerned as he feels the Supreme Court will rule in his favor. He stated that, “We will possibly get a bad ruling and then we will get another bad ruling, and then we will end up in the Supreme Court, and hopefully we will get a fair shake and win in the Supreme Court.”

This statement is troubling for a number of reasons. First, he is questioning the legitimacy of lower court rulings and this is not his first time doing so. Second, he seems to almost expect that the Court would rule with him. Some might say this confidence comes from how Trump’s Supreme Court appointments have made the court very friendly to his policies and comfortably conservative. This then would imply an element of court packing which is often warned to be an element of democratic backsliding (Diamond 2002; Landau 2013, Scheppele 2013; Linz 1978).

With all of this in mind, we must question if referring to Trump’s declaration as democratic backsliding is a bit extreme. This is not the first time a president has taken funds without congressional approval. To pay insurance companies under the Affordable Care Act, then-President Obama requested congressional funds and was denied. However, Obama circumvented this legislative check on the executive branch and told the Treasury to pay the companies any way as a permanent appropriation. This was later ruled to be unconstitutional. Additionally, Trump clearly isn’t the first president to appoint justices of his political leaning to the Supreme Court. This is hardly cause to say that Trumpism is destroying American institutions.

While I will agree that Trump is neither the first nor last to pack the courts in his favor, I feel that his confidence that the branch is unlikely to rule against him is troubling. Maybe it’s just arrogance, maybe it’s something more. Far more frightening is how President Trump’s declaration is further blurring the line on what is within presidential power. Obama did not secure the funding by going through a pre-existing act, he just took it. We can debate whether or not that type of unilateralism is more detrimental, but how Trump is twisting structures of power for his benefit could be cause of alarm. Many warn that these careful calculations are a step toward democratic backsliding (Bermeo 2016; Diamond 2002; Linz 1978; Landau 2013; Scheppele 2013) and I feel it is important to take caution when an executive actor makes such moves. This precedent is dangerous. Trump may use it for a wall now, another president may use it to try to fight climate change, but there is also potential for more malicious forms. For these reasons, Trump’s declaration of a national emergency at the border has the potential to show deeper, more institutional cracks in the powers of American institutions.